The rot at the core

Prem Shankar Jha
21 March 2005

Crimnalised politics has triggered judicial activism to help ordinary citizens who have no recourse but a public interest litigation to secure their rights. This has set the grounds for a collision between the supremacy of members of elected bodies and the judiciary in their respective domains.

The crisis in Jharkhand is over. But the crisis in our constitution that it triggered is only just beginning. Outside the BJP, and some of its allies in the NDA, there is now widespread agreement in the country that in ordering Mr. Shibu Soren to face a vote of confidence four days before the revised date of March 15 set by the Governor, and in asking the pro-tem speaker of the assembly to conduct it, the Supreme Court breached the walls that divide the legislature from the Judiciary, and thereby drove a coach and four through the separation of powers that is the guarantee of citizens' rights in our democracy.

The Supreme Court has done this by breaching articles 212 and 122. These articles provide that "no officer or member of Parliament, who is vested with the power of regulating the procedure or conduct of the business in the house or in the matter of maintenance of order in the house, shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers". In the process it has also opened the door for Parliament and the state assemblies to discuss the judgments handed down by it, and by the high courts in the states. In future therefore judges should not be too surprised if MLAs and MPs start questioning their verdicts and impugning their motives for delivering them.

Fali Nariman's warning, therefore, deserves to be engraved in stone over the entrance to legislatures and high courts throughout the country. "The great organs of the state are by constitutional diktat left supreme in their own respective spheres. That is only because the supreme document of governance — the document that binds courts, Parliament and state legislatures is above them all — the Constitution, is on a pedestal (as it were) proclaiming to one and all that "how so ever high you be, the Constitution is above you."

To stave off the impending crisis, a presidential reference , designed to shore up the crumbling walls of the constitution, is essential. But even if the Congress agrees to make it, is simply restoring the separation of powers enough? Should we not be asking what made the Supreme Court cross the line in the first place? The earliest successful public interest litigation was directed against the quarrying of limestone in the Dehradun hills in the '80s.